Western Australia
Suitors’ Fund Act 1964
Reprint 3: The Act as at 22 July 2005
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Reprinted under the
Reprints Act 1984 as
at 22 July 2005
Western Australia
Suitors’ Fund Act 1964
CONTENTS
1.
2.
3.
4.
4A.
5.
6.
7.
8.
9.
10.
11.
12.
12A.
13.
14.
Reprint 3
Short title
Commencement
Interpretation
Suitors’ Fund established
Application of Financial Administration and Audit
Act 1985
Fees to be paid to courts on issue of writs etc.
Department to advise Treasurer of number of writs,
etc. issued
Payment from Fund only on direction of Board
Appeal Costs Board, constitution
Board meetings
Successful appeal on question of law, indemnity
certificate may be granted
Indemnity certificate entitles respondent to costs from
the Fund
Indemnity certificate vacated or inoperative in certain
circumstances
Costs of trial where conviction quashed without new
trial may be met from Fund; cost certificates
No appeal lies against grant or refusal of a certificate
Costs of new trial etc. where proceedings aborted etc.
due to no fault of party may be met from Fund
1
1
1
3
4
4
5
5
6
7
7
8
10
12
14
14
page i
Suitors’ Fund Act 1964
Contents
14A.
14B.
15.
15A.
16.
17.
Costs of legal representation of infant may be met
from Fund
Costs of trial etc. where Court refuses to approve
settlement may be met from Fund
Costs of appeal etc. where award of damages
overturned on appeal may be met from Fund
Subsidiary and related corporations
Protection from personal liability
Regulations
16
17
19
20
21
21
Notes
Compilation table
page ii
22
Reprint 3
Reprinted under the
Reprints Act 1984 as
at 22 July 2005
Western Australia
Suitors’ Fund Act 1964
An Act to make provision in respect of the liability for costs of
certain litigation; to establish a Suitors’ Fund to meet that liability;
and for incidental and other purposes.
1.
Short title
This Act may be cited as the Suitors’ Fund Act 1964 1.
2.
Commencement
(1)
Subject to subsection (2), this Act shall come into operation on a
date to be fixed by proclamation 1.
(2)
It shall not be necessary to proclaim that the whole Act shall
come into operation on one day, but the several sections of this
Act may be proclaimed to come into operation on such days as
are respectively fixed by proclamation.
3.
Interpretation
In this Act unless the contrary intention appears —
“appeal” includes any proceeding by way of discharging or
setting aside a judgment, a motion for a new trial, a case
stated for the opinion of the Supreme Court on a question
of law, an appeal under Part 2 of the Criminal Appeals
Reprint 3
page 1
Suitors’ Fund Act 1964
s. 3
Act 2004, and any other proceeding in the nature of an
appeal;
“company” has the same meaning as it has in the Corporations
Act 2001 of the Commonwealth;
“costs” in relation to an appeal includes the costs of an
application for an indemnity certificate or a costs certificate
in respect of the appeal, but does not include costs incurred
in a court of first instance except where otherwise expressly
provided;
“costs certificate” means a costs certificate granted under
section 12A;
“Department” means the department of the Public Service
principally assisting the Minister in the administration of
this Act;
“foreign company” means a foreign company within the
meaning of the Corporations Act 2001 of the
Commonwealth, and a registrable Australian body (within
the meaning of that Act) other than such a body formed or
incorporated in the State;
“indemnity certificate” means an indemnity certificate granted
under section 10;
“sequence of appeals” means a sequence of appeals in which
each appeal that follows the last preceding appeal in the
sequence is an appeal against the decision in the last
preceding appeal;
“the Board” means the Appeal Costs Board constituted under
this Act;
“the Fund” means the Suitors’ Fund established under this Act.
[Section 3 amended by No. 72 of 1969 s. 2; No. 57 of 1971 s. 3;
No. 10 of 1982 s. 28; No. 58 of 1984 s. 2; No. 31 of 1993 s. 65;
No. 34 of 1999 s. 61; No. 20 of 2003 s. 46; No. 59 of 2004
s. 141; No. 84 of 2004 s. 78.]
page 2
Reprint 3
Suitors’ Fund Act 1964
s. 4
Suitors’ Fund established
4.
(1)
There shall be established and kept at the Treasury, forming part
of the Trust Fund constituted under section 9 of the Financial
Administration and Audit Act 1985, a Fund to be called the
“Suitors’ Fund”.
(2)
The amounts referred to in section 6(2) shall be credited to the
Fund.
(3)
The amounts referred to in sections 11, 14, 14A, 14B, and 15
and the cost of the administration of this Act shall be charged to
the Fund.
(4)
All interest derived from the investment of the Fund forms part
of the Fund.
(5)
The Fund is, subject to this Act, under the direction, control and
management of the Board.
(6)
Where the Board certifies in writing to the Treasurer that the
amount of money standing to the credit of the Fund is, for the
time being, insufficient for the purposes of this Act, the Board
may borrow from the Treasurer such amounts as are sufficient
for the time being to make up the deficiency.
(7)
(a)
(b)
(8)
Reprint 3
Any amount advanced to the Fund pursuant to
subsection (6) shall be subsequently repaid to the
Treasurer from moneys standing to the credit of the
Fund by the Board, when money is available to the Fund
to make the repayment.
The amount of any money so advanced by the Treasurer
to the Fund is, while the money remains unpaid, a
charge on the Fund.
Where the Board certifies in writing to the Treasurer that any
money standing to the credit of the Fund is not immediately
required for the purposes of this Act the Treasurer may
temporarily invest so much of the money as he considers
practicable so to do, as trust funds may be invested under
page 3
Suitors’ Fund Act 1964
s. 4A
(9)
Part III of the Trustees Act 1962 and shall cause all interest
therefrom to be credited to the Fund.
The accounts relating to the Fund shall be audited by the
Auditor General appointed under the Financial Administration
and Audit Act 1985.
[Section 4 amended by No. 44 of 1977 s. 3; No. 58 of 1984 s. 3;
No. 98 of 1985 s. 3; No. 49 of 1996 s. 64; No. 1 of 1997 s. 18.]
4A.
Application of Financial Administration and Audit Act 1985
The provisions of the Financial Administration and Audit
Act 1985 regulating the financial administration, audit and
reporting of departments apply to and in respect of the
department and the Fund.
[Section 4A inserted by No. 98 of 1985 s. 3; amended by No. 31
of 1993 s. 66.]
5.
Fees to be paid to courts on issue of writs etc.
(1)
There shall be paid to the proper officer of the appropriate
Court —
(a) upon the issue of any writ of summons whereby an
action is commenced in the Supreme Court or The
District Court of Western Australia;
(b) upon the commencement of any case in the Magistrates
Court under the Magistrates Court (Civil Proceedings)
Act 2004; or
(c) upon the issue of any summons or court hearing notice
under the Criminal Procedure Act 2004 in respect of a
prosecution notice to be dealt with by a court of
summary jurisdiction,
in addition to any fee which may be payable in respect thereof
under any Act or rules of any Court, the sum of 10 cents or such
other sum not exceeding 20 cents as may from time to time be
prescribed.
page 4
Reprint 3
Suitors’ Fund Act 1964
s. 6
(2)
The words “or The District Court of Western Australia”, in
subsection (1)(a), are deemed to have been included therein on
and from 1 April 1970.
[Section 5 amended by No. 113 of 1965 s. 8; No. 57 of 1971
s. 4; No. 59 of 2004 s. 141; No. 84 of 2004 s. 78.]
6.
Department to advise Treasurer of number of writs, etc.
issued
(1)
During the months of January, April, July and October of each
year, the chief executive officer of the department shall cause to
be prepared and sent to the Treasurer, a statement signed by
him, specifying the total number of processes referred to in
section 5, upon which a fee is payable under this Act, that
appear from records in the custody or control of the department,
to have been issued out of or returnable in the Supreme Court,
The District Court of Western Australia, the Children’s Court or
the Magistrates Court during the period of 3 months
immediately preceding the first day of the month in which the
statement is prepared.
(2)
The Treasurer shall, as soon as practicable after the receipt by
him of the statement referred to in subsection (1), cause to be
charged to the Consolidated Fund (which is hereby to the
necessary extent appropriated accordingly) and credited to the
Fund, an amount equal to the total sum of the additional fee
payable under section 5 that is credited to the Consolidated
Fund in respect of the processes specified in the statement.
[Section 6 amended by No. 58 of 1978 s. 2; No. 98 of 1985 s. 3;
No. 6 of 1993 s. 11; No. 31 of 1993 s. 67; No. 49 of 1996 s. 64;
No. 59 of 2004 s. 141.]
7.
Payment from Fund only on direction of Board
(1)
Reprint 3
Payment shall not be made out of moneys standing to the credit
of the Fund except upon and in accordance with a written
direction of the Board.
page 5
Suitors’ Fund Act 1964
s. 8
(2)
The Board shall not issue such a direction unless it is satisfied
that the payment from moneys standing to the credit of the Fund
to which the direction relates is authorised by or under this Act
and that the provisions of this Act relating to any claim for the
payment have been complied with.
[Section 7 amended by No. 49 of 1996 s. 64.]
8.
Appeal Costs Board, constitution
(1)
For the purposes of this Act there shall be a Board to be called
the “Appeal Costs Board”.
(2)
The Board shall consist of 3 members appointed by the
Governor of whom —
(a) one shall be appointed as Chairman of the Board;
(b) one shall be a person who is nominated in writing by the
Law Society of Western Australia (Inc.) and who is
willing to act as a member of the Board; and
(c) one shall be a person who is nominated in writing by
The Legal Practice Board established by the Legal
Practice Act 2003 and who is so willing.
(3)
If either of the bodies referred to in subsection (2) does not
within 30 days after being requested in writing by the Minister
so to do, submit a nomination of a person as member of the
Board, the Minister may, without the nomination, appoint an
otherwise eligible person to be a member of the Board to
represent the interests of the body in default and the person so
appointed shall for all purposes be deemed to be duly appointed.
(4)
The Governor may at any time remove any person appointed to
the Board and appoint another otherwise eligible person in his
stead to represent, where the case requires, the interests of the
body represented by the member in whose place he is appointed.
(5)
Each member appointed to the Board including the Chairman
thereof, is entitled to hold office for such term not exceeding
3 years as the Governor specifies at the time of his appointment
and is eligible for reappointment.
page 6
Reprint 3
Suitors’ Fund Act 1964
s. 9
(6)
The exercise or performance of the functions or powers of the
Board is not affected by reason only of there being a vacancy in
the office of a member.
[Section 8 amended by No. 65 of 2003 s. 68(2); No. 74 of 2003
s. 114.]
9.
Board meetings
(1)
The Chairman shall preside at all meetings of the Board at
which he is present.
(2)
At a meeting of the Board 2 members constitute a quorum.
(3)
A question arising at a meeting of the Board shall be decided by
a majority of the votes of the members present.
(4)
Where 2 members only are present at a meeting of the Board, if
those members differ in opinion upon any question the decision
on the question shall be deferred to a meeting of the Board at
which all 3 members thereof are present.
(5)
Subject to this Act the Board may regulate its own proceedings.
(6)
The functions of the Board are —
(a) to exercise and discharge the powers, authorities, duties,
functions and obligations conferred and imposed on the
Board by or under this Act; and
(b) to advise the Minister upon any matter submitted by him
to the Board for its advice that relates to the operation of
this Act.
(7)
There may be appointed by the Governor a Secretary to the
Board and such other officers as are necessary for carrying out
the objects of this Act.
10.
Successful appeal on question of law, indemnity certificate
may be granted
(1)
Reprint 3
Where an appeal against the decision of a Court in any
proceedings —
(a) to the Supreme Court;
page 7
Suitors’ Fund Act 1964
s. 11
(b)
(c)
(d)
to the High Court of Australia from a decision of the
Supreme Court;
to the Queen in Council from a decision of the High
Court of Australia given in an appeal from a decision of
the Supreme Court; or
to the Queen in Council from a decision of the Supreme
Court,
on a question of law succeeds, the Supreme Court may, upon
application made to the Court in that behalf by any party to the
proceedings, grant to the respondent to the appeal or to all or
any of several respondents to the appeal an indemnity certificate
in respect of that appeal.
(2)
Whenever an appeal against the decision of a Court in any
proceedings to The District Court of Western Australia on a
question of law succeeds, The District Court of Western
Australia may, upon application made to it in that behalf by any
party to the proceedings, grant to the respondent to the appeal or
to all or any of several respondents to the appeal an indemnity
certificate in respect of that appeal.
(3)
The jurisdiction conferred upon the Supreme Court or The
District Court of Western Australia by subsection (1) or (2) may
be exercised by a Judge of the Supreme Court or a District
Court Judge, as the case may be, sitting in Chambers.
[Section 10 amended by No. 72 of 1969 s. 3; No. 58 of 1978
s. 3.]
11.
Indemnity certificate entitles respondent to costs from the
Fund
(1)
page 8
Subject to this Act, where a respondent to an appeal has been
granted an indemnity certificate, the certificate entitles the
respondent to be paid from moneys standing to the credit of the
Fund —
(a) an amount equal to the appellant’s costs —
(i) of the appeal in respect of which the indemnity
certificate was granted; and also
Reprint 3
Suitors’ Fund Act 1964
s. 11
(ii)
(b)
(c)
(2)
where that appeal is an appeal in a sequence of
appeals, of any appeal or appeals in the sequence
that preceded the appeal in respect of which the
certificate of indemnity was granted,
ordered to be paid and actually paid by the respondent;
an amount equal to the respondent’s costs —
(i) of the appeal in respect of which the certificate
was granted; and also
(ii) where that appeal is an appeal in a sequence of
appeals, of an appeal or appeals in the sequence
that preceded the appeal in respect of which the
certificate was granted,
as taxed or agreed upon by the Board and the respondent
or the respondent’s solicitor and not ordered to be paid
by any other party; and
where the costs referred to in paragraph (b) are taxed at
the instance of the respondent an amount equal to the
costs incurred by the respondent in having the costs
taxed.
Where an indemnity certificate has been granted, and the Board
is satisfied —
(a) that the respondent unreasonably refuses or neglects or
is unable through lack of means to pay to the appellant
the costs referred to in subsection (1)(a) or any part of
those costs; or
(b) that payment of those costs or part of those costs would
cause the respondent, undue hardship; or
(c) that the respondent cannot be found and the costs or part
of those costs have not already been paid by the
respondent and the certificate of taxation in respect
thereof is produced to the Board,
the Board may direct in writing that an amount equal to those
costs or to the part of those costs not already paid by the
Reprint 3
page 9
Suitors’ Fund Act 1964
s. 12
respondent be paid from moneys standing to the credit of the
Fund for and on behalf of the respondent to the appellant, and
thereupon the appellant is entitled to payment from moneys
standing to the credit of the Fund in accordance with the
direction of the Board and the Fund is discharged from liability
to the respondent in respect of those costs to the extent of the
amount paid in accordance with the direction.
(3)
Notwithstanding the foregoing provisions of this section —
(a) the aggregate of the amounts payable from moneys
standing to the credit of the Fund pursuant to
paragraphs (b) and (c) of subsection (1) shall not exceed
the amount payable from moneys standing to the credit of
the Fund pursuant to paragraph (a) of that subsection; and
(b) the amount payable from moneys standing to the credit
of the Fund to any one respondent pursuant to an
indemnity certificate shall not in any case exceed the
sum of $1 000 or such other amount as may from time to
time be prescribed.
[Section 11 amended by No. 113 of 1965 s. 8; No. 49 of 1996
s. 64.]
12.
Indemnity certificate vacated or inoperative in certain
circumstances
(1)
page 10
An indemnity certificate granted to a respondent in respect of an
appeal, being an appeal in a sequence of appeals, is vacated
if —
(a) in a later appeal in the sequence the successful party to
the appeal is the one to whom the indemnity certificate
was granted; or
(b) an indemnity certificate is granted in respect of a later
appeal in the sequence and the respondent to the earlier
appeal is a party to the later appeal.
Reprint 3
Suitors’ Fund Act 1964
s. 12
(2)
An indemnity certificate granted to a respondent in respect of an
appeal —
(a) where a time is limited for appealing against the
decision in the appeal, is inoperative during the time so
limited;
(b) where a time is not limited for appealing against the
decision in the appeal, is inoperative until an application
for leave to appeal against that decision has been
determined and where leave to appeal is granted, until
the appeal is instituted, or until the respondent lodges
with the Board a written undertaking by him that he will
not apply for leave to appeal or appeal against the
decision in the appeal, whichever first happens; and
(c) is, where the decision in the appeal is the subject of an
appeal, inoperative during the pendency of the appeal
notwithstanding the foregoing provisions of this
subsection.
(3)
Where the appeal and a later appeal or later appeals form a
sequence of appeals and the indemnity certificate has not been
vacated under subsection (1), any reference in subsection (2) —
(a) to the decision in the appeal shall be construed as
including a reference to the decision in the later appeal
or in each such later appeal, as the case may be; and
(b) to the pendency of the appeal shall be construed as
including a reference to the pendency of the later appeal
or of each such later appeal, as the case may be.
(a) Where an undertaking has been given by a respondent
under subsection (2)(b) and thereafter the respondent
applies for leave to appeal or appeals against the
decision in respect of which the undertaking was given,
the respondent shall, upon written demand being made
in that behalf by the Board, pay to the Board any amount
paid to him, or for and on his behalf under the indemnity
certificate and in default of payment of the amount by
the respondent in accordance with the demand, that
(4)
Reprint 3
page 11
Suitors’ Fund Act 1964
s. 12A
(b)
(5)
amount may be recovered by the Board from the
respondent as a debt in any court of competent
jurisdiction.
Any amount paid to or recovered by the Board under
this subsection shall be credited by it to the Fund.
Nothing in this section affects the operation of subsection (1).
[Section 12 amended by No. 49 of 1996 s. 64.]
12A.
Costs of trial where conviction quashed without new trial
may be met from Fund; cost certificates
(1)
Where after the coming into operation of the Suitors’ Fund
Act Amendment Act 1971 1, on an appeal against a conviction for
an indictable offence the conviction is quashed without a new
trial being ordered, the Supreme Court may, upon application
made to it in that behalf, grant to the appellant a costs certificate
in respect of the costs of the appeal or such part of those costs as
the Court may determine.
(2)
Where after the coming into operation of the Suitors’ Fund
Act Amendment Act 1971 1, an appeal on a question of law
succeeds and the Court that allowed the appeal would, but for
the provisions of some other Act or law, have ordered costs of
the appeal, fixed or to be taxed, or some proportion thereof, to
be paid by the respondent —
(a) that Court shall make a finding to that effect and shall
specify the amount of costs it would have fixed or state
that it would have directed them to be taxed, or what
proportion of the taxed costs it would have ordered to be
paid, as the case requires; and
(b) the Supreme Court may, upon application made to it in
that behalf, grant a costs certificate to the appellant and,
if so, shall include in it the substance of the finding
referred to in paragraph (a).
(3)
The jurisdiction of the Supreme Court to grant a costs certificate
may be exercised by a judge sitting in chambers.
page 12
Reprint 3
Suitors’ Fund Act 1964
s. 12A
(4)
Subject to this Act, where an appellant has been granted a costs
certificate, the certificate shall entitle the appellant to be paid
from moneys standing to the credit of the Fund —
(a) if the certificate was granted under subsection (1) —
(i) an amount equal to the appellant’s costs of the
appeal in respect of which the certificate was
granted as taxed or agreed upon by the Board and
the appellant or the appellant’s solicitor, or equal
to such part of those costs as the Supreme Court
has determined, as the case requires; and
(ii) where the costs referred to in subparagraph (i)
are taxed, an amount equal to the costs incurred
by the appellant in having those costs taxed;
or
(b) if the certificate was granted under subsection (2) —
(i) the amount of costs of the appeal which the
Court that allowed the appeal would have
ordered to be paid by the respondent; or
(ii) the taxed costs of the appeal, or such proportion
of the taxed costs as that Court would have
ordered to be paid by the respondent, including
the costs incurred by the appellant in having
those costs taxed, or in lieu of the taxed costs or
that proportion of them an amount agreed upon
by the Board and the appellant or the appellant’s
solicitor,
as the case requires.
(5)
The amount payable from moneys standing to the credit of the
Fund to any one appellant pursuant to a costs certificate shall
not in any case exceed the sum of $1 000 or such other amount
as may from time to time be prescribed.
[Section 12A inserted by No. 57 of 1971 s. 5; amended by
No. 49 of 1996 s. 64.]
Reprint 3
page 13
Suitors’ Fund Act 1964
s. 13
13.
No appeal lies against grant or refusal of a certificate
(1)
In the case of an application for —
(a) an indemnity certificate, The District Court of Western
Australia or the Supreme Court; or
(b) a costs certificate, the Supreme Court,
may grant or refuse that application and no appeal lies against
that grant or refusal.
(2)
An indemnity certificate shall not be granted in respect of an
appeal from proceedings begun in a court of first instance before
the coming into operation of this Act.
(3)
An indemnity certificate or a costs certificate shall not be
granted in favour of the Crown or a company or foreign
company that has a paid up capital of or equivalent to $200 000
or more.
[Section 13 amended by No. 113 of 1965 s. 8; No. 57 of 1971
s. 6; No. 58 of 1978 s. 4.]
14.
Costs of new trial etc. where proceedings aborted etc. due to
no fault of party may be met from Fund
(1)
page 14
Where after the coming into operation of this Act —
(a) any civil or criminal proceedings are rendered abortive
by the death or protracted illness of the judge, magistrate
or justice before whom the proceedings were had or by
disagreement on the part of the jury where the
proceedings are with a jury;
(b) an appeal on a question of law against the conviction of
a person (in this section called “the appellant”)
convicted on indictment or summarily is upheld and a
new trial is ordered; or
(c) the hearing of any civil or criminal proceeding is
discontinued and a new trial is ordered by the presiding
judge, magistrate or justice for a reason not attributable
in any way to the act, neglect or default in the case of
Reprint 3
Suitors’ Fund Act 1964
s. 14
civil proceedings of all or any one or more of the parties
thereto or their counsel or solicitors, or, in the case of
criminal proceedings, of the accused or his counsel or
solicitor, and the presiding judge, magistrate or justice
grants a certificate, which he is hereby empowered to
grant —
(i) in the case of civil proceedings — to any party
thereto stating the reason why the proceedings
were discontinued and a new trial ordered and
that the reason was not attributable in any way to
the act, neglect or default of all or any one or
more of the parties to the proceedings or their
counsel or solicitors; or
(ii) in the case of criminal proceedings — to the
accused stating the reason why the proceedings
were discontinued and a new trial ordered and
that the reason was not attributable in any way to
the act, neglect or default of the accused or his
counsel or solicitor,
or where after the coming into operation of the Suitors’ Fund
Act Amendment Act 1971 1 —
(d) a criminal proceeding in any Court is adjourned by or on
behalf of the prosecution and the presiding judge,
magistrate or justice grants a certificate, which he is
hereby empowered to grant if he is satisfied that by
reason of the adjournment the accused has necessarily
incurred expense, to the accused stating the reason why
the proceedings were adjourned and that the reason was
not attributable in any way to the act, neglect or default
of the accused or his counsel or solicitor,
and any party to the civil proceedings or the accused in the
criminal proceedings or the appellant, as the case may be, incurs
additional costs by reason of the new trial that is had as a
consequence of the proceedings being so rendered abortive or as
a consequence of the order for a new trial or as a consequence
Reprint 3
page 15
Suitors’ Fund Act 1964
s. 14A
of the adjournment, then the Board may, upon application made
to it in that behalf, direct the payment from moneys standing to
the credit of the Fund to the party or the accused or the
appellant, as the case may be, of the costs or such part thereof,
as the Board may determine incurred by the party or the accused
or the appellant in the proceedings before they were rendered
abortive or were adjourned or the conviction was quashed or the
hearing of the proceedings was so discontinued.
(1a)
For the purposes of this section a criminal proceeding is deemed
to have been adjourned where the prosecution has notified the
accused or his counsel or solicitor that a date has been fixed for
the hearing of the proceedings and the proceeding is, without his
consent, not listed for hearing on that day.
(1b)
An application for a certificate under subsection (1) with respect
to the adjournment of a criminal proceeding may be made when
the proceedings come on for hearing and a certificate may then
be granted in accordance with the provisions of
subsection (1)(d).
(2)
An amount shall not be paid from moneys standing to the credit
of the Fund under this section to the Crown or to a company or
foreign company that has a paid up capital of or equivalent to
$200 000 or more.
[Section 14 amended by No. 113 of 1965 s. 8; No. 72 of 1969
s. 4; No. 57 of 1971 s. 7; No. 49 of 1996 s. 64; No. 84 of 2004
s. 80.]
14A.
(1)
page 16
Costs of legal representation of infant may be met from
Fund
Where after the coming into operation of the Legal
Representation of Infants Act 1977 2, a guardian ad litem is
appointed pursuant to that Act to represent the interests of an
infant in any proceedings and the Court orders that the costs of
such representation, or any portion of such costs, shall be
charged to the Suitors’ Fund the Court shall specify the amount
of the costs to be so charged or direct them to be taxed and
Reprint 3
Suitors’ Fund Act 1964
s. 14B
specify the proportion of the taxed costs so to be charged and
the order shall thereupon entitle the guardian ad litem to be paid
from moneys standing to the credit of the Fund —
(a) the amount so specified; or
(b) an amount equal to that proportion of the costs as so
taxed, together with such further costs as may be
incurred by him in having the costs of the proceedings
so taxed; or
(c) an amount agreed upon by the Board and the solicitor
representing the guardian ad litem.
(2)
Notwithstanding the provisions of subsection (1), the amount
payable from moneys standing to the credit of the Fund in
respect of any proceedings where an order is so made shall not
in any case exceed $1 000 or such other amount as may from
time to time be prescribed.
[Section 14A inserted by No. 44 of 1977 s. 4; amended by
No. 49 of 1996 s. 64.]
14B.
(1)
Reprint 3
Costs of trial etc. where Court refuses to approve settlement
may be met from Fund
In this section —
“person under a disability” means —
(a) an infant;
(b) a person in respect of whom an administration order
is in force under Part 6 of the Guardianship and
Administration Act 1990; and
(c) a person who, by reason of mental illness, defect or
infirmity, however occasioned, is declared by the
Court to be incapable of managing his affairs in
respect of any proceedings to which the declaration
relates;
“settlement” includes a compromise of an action or of an
appeal, acceptance of money paid into court and an
acceptance of an offer to consent to judgment.
page 17
Suitors’ Fund Act 1964
s. 14B
(2)
Where in any action or appeal —
(a) there is a claim or appeal by or on behalf of a person
under disability;
(b) the person under disability or his next friend has applied
to the Court for an order approving the proposed
settlement;
(c) the Court refuses to approve the proposed settlement;
(d) on trial of the action or in an appeal brought in relation
thereto the amount awarded is not more than the amount
offered in the proposed settlement; and
(e) the person under disability or his next friend is ordered
to pay the whole or any part of the costs of the action or
appeal on any ground,
the Court before which the action is tried, or the Court by which
the appeal is heard, as the case may be, may, upon application
made to it in that behalf, grant to the person under disability or
his next friend an indemnity certificate.
(3)
An indemnity certificate granted under subsection (2) entitles
the person under disability or his next friend to be paid from
moneys standing to the credit of the Fund —
(a) the costs of the action or the appeal ordered to be paid
by the person under disability or his next friend; and
(b) the costs of the action or appeal, as the case may be, as
determined by the Board, incurred by or on behalf of the
person under disability after the date on which the Court
refused to approve the settlement.
(4)
Notwithstanding the provisions of subsection (3), the total
amount payable from moneys standing to the credit of the Fund
in respect of any proceedings in respect of which a certificate is
so granted shall not in any case exceed $5 000 or such other
amount as may from time to time be prescribed.
[Section 14B inserted by No. 37 of 1978 s. 2; amended by
No. 24 of 1990 s. 123; No. 49 of 1996 s. 64.]
page 18
Reprint 3
Suitors’ Fund Act 1964
s. 15
15.
Costs of appeal etc. where award of damages overturned on
appeal may be met from Fund
(1)
Reprint 3
Where after the coming into operation of this Act, a new trial is
ordered in an action on the ground that the damages awarded in
the action were excessive or inadequate, the respondent to the
appeal or motion for the new trial is entitled to be paid from
moneys standing to the credit of the Fund —
(a) an amount equal to the costs of the appellant in the
appeal or motion for and upon the new trial ordered to
be paid and actually paid by the respondent but where
the Board is satisfied —
(i) that the respondent unreasonably refuses or
neglects or is unable through lack of means to
pay the whole of those costs or part thereof; or
(ii) that payment of those costs or part thereof would
cause the respondent undue hardship; or
(iii) that the respondent cannot be found and the costs
or part of those costs have not already been paid
by the respondent and the Certificate of Taxation
in respect thereof is produced to the Board,
the Board may direct in writing that an amount equal to
those costs or to the part of those costs not already paid
by the respondent be paid from moneys standing to the
credit of the Fund for and on behalf of the respondent to
the appellant and thereupon the appellant is entitled to
payment from moneys standing to the credit of the Fund
in accordance with the direction of the Board and the
Fund is discharged from liability to the respondent in
respect of those costs to the extent of the amount paid in
accordance with the direction;
(b) an amount equal to the respondent’s costs of the appeal or
motion for and upon the new trial, as taxed or agreed upon
by the Board and the respondent or the respondent’s
solicitor and not ordered to be paid by any other party; and
page 19
Suitors’ Fund Act 1964
s. 15A
(c)
where the costs referred to in paragraph (b) are taxed at
the instance of the respondent an amount equal to the
costs incurred by him in having those costs taxed.
(2)
Notwithstanding the provisions of subsection (1) —
(a) the aggregate of the amounts payable from moneys
standing to the credit of the Fund pursuant to
paragraphs (b) and (c) of that subsection shall not exceed
the amount payable from moneys standing to the credit of
the Fund pursuant to paragraph (a) of that subsection; and
(b) the amount payable from moneys standing to the credit
of the Fund to any one respondent in respect of the
appeal or motion for a new trial shall not in any case
exceed the sum of $1 000 or such other amount as may
from time to time be prescribed.
(2a)
The provisions of subsections (1) and (2) relating to the
entitlement of a respondent to an appeal to be paid from moneys
standing to the credit of the Fund amounts in respect of costs of
an appeal apply, with such modifications as are necessary,
where, after the coming into operation of the Suitors’ Fund
Act Amendment Act 1971 1, on an appeal in an action a new trial
is not ordered but damages awarded in the action are altered on
the ground that they were excessive or inadequate.
(3)
This section does not apply where the respondent to the appeal
or motion for the new trial is the Crown or a company or foreign
company that has a paid up capital of or equivalent to $200 000.
[Section 15 amended by No. 113 of 1965 s. 8; No. 72 of 1969
s. 5; No. 57 of 1971 s. 8; No. 49 of 1996 s. 64.]
15A.
Subsidiary and related corporations
Notwithstanding any other provision of this Act, where it
appears to the Board that a corporation is, for the purposes of
the Corporations Act 2001 of the Commonwealth, a related
body corporate of another corporation that has a paid up capital
of or equivalent to $200 000 or more, an amount shall not be
page 20
Reprint 3
Suitors’ Fund Act 1964
s. 16
paid from moneys standing to the credit of the Fund to that
first-mentioned corporation.
[Section 15A inserted by No. 57 of 1971 s. 9; amended by
No. 10 of 1982 s. 28; No. 49 of 1996 s. 64; No. 20 of 2003
s. 47.]
16.
Protection from personal liability
Neither the Board nor a person who is, or has been, a member of
the Board is liable in any action or proceeding for anything done
or omitted in good faith, in or in connection with, the exercise or
purported exercise of any power conferred, or the carrying out
of any duty imposed on the Board by this Act.
17.
Regulations
The Governor may make regulations prescribing all matters that
by this Act are required or authorised to be prescribed or that are
necessary or convenient to be prescribed for carrying out or
giving effect to the provisions of this Act and in particular may
make regulations for or with respect to —
(a) the manner of operating on the Fund;
(b) the taxation or assessment of costs for the purposes of
this Act in circumstances not provided for under the
rules of the appropriate Court or where a party to an
appeal refuses or neglects to tax his costs;
(c) regulating the preparation and service of bills of costs
proposed to be taxed for the purposes of this Act; and
(d) prescribing forms for the purposes of this Act.
Reprint 3
page 21
Suitors’ Fund Act 1964
Notes
1
This reprint is a compilation as at 22 July 2005 of the Suitors’ Fund Act 1964 and
includes the amendments made by the other written laws referred to in the
following table. The table also contains information about any reprint.
Compilation table
Short title
Number
and year
Assent
Commencement
Suitors’ Fund Act 1964
43 of 1964
19 Nov 1964 s. 1-7: 1 Jan 1965 (see s. 2 and
Gazette 24 Dec 1964 p. 4093);
balance: 2 Aug 1965 (see s. 2
and Gazette 16 Jul 1965
p. 2059)
Suitors’ Fund
Act Amendment
Act 1969
72 of 1969
27 Oct 1969
Suitors’ Fund Act
Amendment Act 1971
57 of 1971
15 Dec 1971 18 Feb 1972 (see s. 2 and
Gazette 18 Feb 1972 p. 355)
Suitors’ Fund Act
Amendment Act 1977
44 of 1977
7 Nov 1977
Suitors’ Fund Act
Amendment Act 1978
37 of 1978
21 Aug 1978 21 Aug 1978
Suitors’ Fund Act
Amendment Act
(No. 2) 1978
58 of 1978
21 Sep 1978 21 Sep 1978
27 Oct 1969
1 Jan 1978 (see s. 2 and Gazette
30 Dec 1977 p. 4743)
Reprint of the Suitors’ Fund Act 1964 approved 21 Aug 1979 (includes amendments
listed above)
Companies
(Consequential
Amendments) Act 1982
s. 28
10 of 1982
14 May 1982 1 Jul 1982 (see s. 2(1) and
Gazette 25 Jun 1982 p. 2079)
Suitors’ Fund
Amendment Act 1984
58 of 1984
24 Oct 1984
21 Nov 1984
Acts Amendment
(Financial
Administration and
Audit) Act 1985 s. 3
98 of 1985
4 Dec 1985
1 Jul 1986 (see s. 2 and Gazette
30 Jun 1986 p. 2255)
Guardianship and
Administration Act 1990
s. 123
24 of 1990
7 Sep 1990
20 Oct 1992 (see s. 2 and
Gazette 2 Oct 1992 p. 4811)
page 22
Reprint 3
Suitors’ Fund Act 1964
Short title
Number
and year
Assent
Commencement
Financial
Administration
Legislation Amendment
Act 1993 s. 11
6 of 1993
27 Aug 1993 1 Jul 1993 (see s. 2(1))
Acts Amendment
(Ministry of Justice)
Act 1993 Pt. 183
31 of 1993
15 Dec 1993 1 Jul 1993 (see s. 2)
Financial Legislation
Amendment Act 1996
s. 64
49 of 1996
25 Oct 1996
25 Oct 1996 (see s. 2(1))
Trustees Amendment
Act 1997 s. 18
1 of 1997
6 May 1997
16 Jun 1997 (see s. 2 and
Gazette 10 Jun 1997 p. 2661)
Workers’ Compensation
and Rehabilitation
Amendment Act 1999
s. 61
34 of 1999
5 Oct 1999
15 Oct 1999 (see s. 2(2) and
Gazette 15 Oct 1999 p. 4889)
Reprint of the Suitors’ Fund Act 1964 as at 29 Oct 1999 (includes amendments listed
above)
Corporations
(Consequential
Amendments) Act (No. 2)
2003 Pt. 23
20 of 2003
23 Apr 2003 15 Jul 2001 (see s. 2(1) and
Cwlth Gazette 13 Jul 2001
No. S285)
Acts Amendment and
Repeal (Courts and Legal
Practice) Act 2003 s. 68
65 of 2003
4 Dec 2003
Statutes (Repeals and
Minor Amendments)
Act 2003 s. 114
74 of 2003
15 Dec 2003 15 Dec 2003 (see s. 2)
Courts Legislation
Amendment and Repeal
Act 2004 s. 141
59 of 2004
23 Nov 2004 1 May 2005 (see s. 2 and
Gazette 31 Dec 2004 p. 7128)
Criminal Procedure and
Appeals (Consequential
and Other Provisions)
Act 2004 s. 78 and 80
84 of 2004
16 Dec 2004 2 May 2005 (see s. 2 and
Gazette 31 Dec 2004 p. 7129
(correction in Gazette
7 Jan 2005 p. 53))
1 Jan 2004 (see s. 2 and Gazette
30 Dec 2003 p. 5722)
Reprint 3: The Suitors’ Fund Act 1964 as at 22 Jul 2005 (includes amendments listed
above)
2
Proclaimed 1 Jan 1978, see s. 2 and Gazette 23 Dec 1977, p. 4671.
Reprint 3
page 23
Suitors’ Fund Act 1964
3
The Acts Amendment (Ministry of Justice) Act 1993 s. 68 is a savings provision
that is of no further effect.
By Authority: JOHN A. STRIJK, Government Printer